K J Smith Solicitors

Pre-Nups Carry Weight But Will They Become Legally Binding?

Published: 4 April 2013

Crucial legal advice will become out of reach for many people following the government’s decision to withdraw the availability of legal aid from family work in all but limited circumstances.

Forty-two per cent of marriages end in divorce and many of those individuals later choose to marry again. It’s not surprising that we’re experiencing an increase in people wishing to regulate what should happen to their finances if the marriage breaks down.  Often, it’s those heading into second marriages who want to preserve assets they may have fought long and hard to keep in their first divorce settlement. Increasingly, parents suggest having a Pre-Nup prepared. Having helped their son or daughter to get onto the property ladder by re-mortgaging their own home to provide a deposit, they want to make sure their gift remains with the person who they intended to benefit. 

The current status of Pre-Nups is that they’re not legally binding in England and Wales but they are one of the factors the court will consider within a divorce. Increasing weight has been attached to the existence of a Pre-Nup in recent years, particularly when the parties have each had independent legal advice, have provided each other with accurate information about their respective financial positions and where the agreement has been signed in good time before the wedding (ideally at least 21 days).  The current law is uncertain and the court has a wide 'discretion' to adjust ownership of assets in order to produce 'fairness'. But what is fair? There is no formula and no certainty for those heading into a divorce. It’s hardly surprising then this rather unromantic topic is being added to the wedding list of many future brides and grooms.

The Law Commission has recommended that Pre-Nups be given proper legal status and their full recommendations are expected later this year. At the same time they will be making formal recommendations about how the courts should approach the question of 'non-matrimonial' assets and the parties 'needs' on marriage breakdown. Further news about this will be provided when available.

This article was written by Kerry Smith, Head of Family Law, K J Smith Solicitors, specialists in family law. K J Smith Solicitors is a legal firm specialising in all areas of family law including the preparation of Pre Nuptial Agreements. They believe that the best results come through proper understanding, practical solutions and prompt action. As specialists, they are responsive and flexible to every single client.  Why not contact them today to arrange a free 45 minute consultation. Email them at info@kjsmith.co.uk or call Henley (01491) 630000 or London 020 7070 0330 to find out how they can help you. Their website address is: www.kjsmith.co.uk.

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